CHAPTER IX

CREATION OF THE EXECUTIVE

It was not by chance that Mr. Randolph's resolutions began with the legislative department and it need occasion no surprise that the question of powers to be granted to this department of the proposed Government was the subject of prolonged debate and the grant itself the result of concession and compromise. The lack of power on the part of Congress to raise revenue, to maintain the government under the Articles of Confederation, and to regulate commerce with foreign nations and among the States was the cause of the convention, and this part of the plan would have been discussed and decided, as it was, if Mr. Randolph's resolutions had ended instead of beginning with the legislative department. But the fundamental question at issue was the definition of power. In comparison, the exercise of this power by an executive and indeed even the interpretation of the power were minor matters. Without the grant there could be no exercise of the power, there could be no interpretation, there could be no Constitution.

However a second branch of the proposed government was, according to the theory of the division of powers, the executive. Mr. Randolph's propositions contained in the seventh and eighth of his resolutions, provide respectively:

7. Res. that a National Executive be instituted; to be chosen by the National Legislature for the term of years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.

8. Res. that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.1

There appears to have been no objection on the part of any member to 1 Documentary History of the Constitution, Vol. iii, pp. 18-19. Session of May 29th.

the institution of an executive department which should possess at least the rights "vested in Congress by the Confederation." A difference of opinion existed, however, as to whether the executive should consist of one person or a number; as to the period during which the executive should hold office; the eligibility of the incumbent to reelection; the method of choice and the powers which the executive should possess.

It would seem that Mr. Randolph, who stood sponsor for the resolutions which bear his name, although the authorship thereof is popularly accredited to Mr. Madison, was in favor of a plural executive representing the different sections of the Union. The New Jersey plan laid before the convention on June 15th specified "a federal Executive to consist of

Executive

persons." 1 The A Single convention, however, decided, and wisely, in favor of a single executive.

It will be observed that in each plan the executive was to be elected by the national legislature. The first draft of the Constitution as reported on August 6th, provided, in the first section of its tenth article that, "the Executive Power of the United States shall be vested in a single person. His stile shall be The President of the United States of America'; and his title shall be, 'His Excellency.' He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time." 2

Although every other clause of the section was modified, the convention stood fast by the single executive, as the great desire of the delegates was to maintain, as a cardinal principle of the proposed scheme of government, a separation of powers, and therefore to make the president independent of the other departments of government. It was understood that the president was to be an elective officer; and as far as known, there was not made at any time a proposition for an hereditary executive. It was felt by some members that he should be elected for a fixed number of years and be ineligible to reelection. Those favoring his election by the national legislature were, as a rule, opposed to reelection and in favor of a longer term in order that his dependence upon the legislature might not be too close or too apparent. Those opposing the choice by the legislature appear to have favored a short term with the possibility of reelection. It is thus seen that these questions were interrelated not separate and distinct. Without pausing to trace the steps by which an agreement was reached upon the presidency, it will suffice to say that the term was fixed at a period of four years, subject to reelection. There is no provi- Term of sion in the Constitution preventing a president from being reelected for periods of four years throughout his natural lifetime. General Washington's refusal to stand a third time set a precedent followed by Messrs. Jefferson and

1 Documentary History, Vol. iii, p. 126.

2 Ibid., p. 453.

Office

Electoral
System

Jackson, who might have been elected for a third term, and has established a custom hitherto unbroken. Finally, as the result of much discussion, and of many propositions made only to be rejected, it was agreed that the president should be elected neither by the legislature, by the Congress, by the people, nor by the States, and yet that he should be elected by a method which suggests each of these. Thus, a number of persons called electors, equal to the number of senators and representatives to which each State was entitled in Congress, were to be appointed in such manner as the legislature of each of the States should determine. The electors thus chosen were to meet within their respective States, and to vote by ballot for two persons, only one of whom could be a citizen of the same State with themselves. The person having the greatest number of votes was to be president, provided he received a majority of the whole number of electors appointed. If more than one received a majority and had an equal number of votes, the House of Representatives would choose by ballot one of them for president. If no person received a majority, then the president was to be chosen from the five highest on the list. In such a case the House of Representatives voted by States, each of which was to possess one vote. For this purpose a quorum of the House was to consist of two-thirds of the States, and a majority of the States was necessary for a choice. In any event, the person having the greatest number of votes of electors was to be vice president, and if there remained two with equal votes, the Senate was, by ballot, to choose one, who thereupon became the vice president. All of these features were in the plan agreed to.

It is apparent, from this brief account of the method ultimately adopted, that the electors could be chosen by popular vote within a State if the legislature thereof cared so to do; or the legislature, if it preferred, might itself appoint them. The States might participate directly in the election in case no one voted for by the electors had received a majority of the votes cast. It was believed by the framers that this might frequently happen, inuring to the advantage of the smaller States, just as the selection by election would inure to the advantage of the larger ones. The election of the vice president under like circumstances would inure to the advantage of the small States equally represented by two senators in the upper house.

The members of the convention were without experience in this matter, and the work of their hands was faulty. It has twice been amended, and within the memory of men still living its application gave rise to a disputed election which tested the forbearance and the capacity of the American people for self-government. The precedent for the use of electors chosen in this way seems to have been taken from the Constitution of the State of Maryland, in which the senators were chosen by persons called electors chosen from each of the counties of the State, who, meeting in the city of Annapolis on a

specified date, elected by ballot "either out of their own body, or the people at large, fifteen senators (nine of whom to be residents on the western, and six to be residents on the eastern shore) men of the most wisdom, experience and virtue... "1

Oath of

The great duty imposed upon the president appears to be that prescribed President's in the oath or affirmation taken before entering upon the execution of his high office, that he will to the best of his ability "preserve, protect and defend the Constitution of the United States." That he may be held to strict accountability both for the performance of his duties and the exercise of his rights, both he and the vice president, who succeeds him in case of death or disability, are, to quote the exact language of the fourth section of the second article of the Constitution, to "be removed from Office on Impeachment for, and conviction of, Treason, Bribery or other high Crimes and Misdemeanors."

Great

It has often been stated that the president possesses greater power than His any constitutional monarch, in that he is ex officio commander in chief of the Powers army and navy in any event, and of the militia of the several States when called into the actual service of the United States. This is indeed a great power; but it is one with which the framers of the Constitution were familiar, and which they were therefore willing to entrust to an executive officer of their own choice, inasmuch as the several States had entrusted such powers to their chief executives, termed indifferently president or governor, and designated indifferently captain-general or commander-in-chief. The framers of the Constitution foresaw that it would be but natural that he would request the opinion of the principal officers of the various executive departments not created by but contemplated in the Constitution. It was neither unnatural that he should be authorized to grant reprieves and pardons for offenses against the United States; nor that he should be denied power, in cases of impeachment, lest he might be tempted to exercise it in behalf of one whom he himself had appointed and in whose offense he might have participated.

The convention was much disturbed as to the appointing power and as to its location. This was to be expected, both from the difficulty inherent in the subject and from the lack of any uniform rule in or experience had with the constitutions of the States, where various methods had been tried without the development of any one which commended itself as perfect or markedly superior to the others.

That the president should negotiate treaties in the first instance was seen Treaties to be inevitable from the outset; that he should conclude them and bind the States and their citizens and inhabitants without check or cooperation on the part of the legislative department was felt to be far from desirable. The solution in this case, however, was a very happy one, in that the president represents 1 The Constitutions of the Several Independent States, 1781, p. 128, Article 15.

the States and only States, not the citizens or inhabitants thereof, could conclude treaties. Thus it seemed necessary to the members of the convention that the legislative branch should participate in the exercise of this power, inasmuch as treaties very frequently if not generally require legislation to carry them into effect. The cooperation of both branches of the legislature might therefore have been required, the more especially so, as by the great compromise, revenue bills could only originate in the House subject to amendment or modification in the Senate. The lower house therefore could have claimed a hand in the transaction, as it might be as unwilling to pass an appropriation to carry a treaty into effect, although approved or modified by the Senate, as if the president alone, without the concurrence of the Senate, had negotiated the treaty.1 There were other views of this question which weighed heavily with the members. The Senate, as expected, would always be a small body in comparison with the House of Representatives, and matters of great delicacy, such as foreign affairs, could, it was felt, be best determined in a body of restricted membership, especially as it was to possess advisory as well as ratifying qualities. Again, the States were expressly renouncing the right to conclude treaties and conventions with foreign powers, which, as free, sovereign and independent States, they had possessed. By a happy device the president, the general agent of the States, now conducts the negotiations with foreign powers, and the Senate, as the representative of the States, acts as an advisory body and as a check upon his action. That the advisability of the transaction

1" Mr. Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties." Documentary History, Vol. iii, p. 604. Session of August 23d.

The following extracts, which are reprinted from Sydney George Fisher's Evolution of the Constitution, 1897, pp. 306-7, indicate the successive steps that led to the treatymaking plan finally adopted in the Constitution:

"That the president-general, with the advice of the grand council, hold or direct all Indian treaties in which the general interest or welfare of the colonies may be concerned." (Franklin's Plan of 1754.)

"That the president, by the advice of the council, may hold and manage all Indian treaties in which the general interest or welfare of the colonies may be concerned." (Hutchinson's Plan, 1754.)

"That the power and duty of congress shall extend to entering into alliances." (Franklin's Articles of Confederation, 1775.)

"That the president and commander-in-chief shall have no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative council." (South Carolina Constitution of 1776.)

"The United States, in congress assembled, shall have the sole and exclusive right and power of entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." (Articles of Confederation, 1778.)

"The congress shall have the sole power of entering into and concluding treaties and alliances with foreign powers." (Drayton's Articles of Confederation, 1778.)

"The senate shall have the sole and exclusive power to make treaties." (Pinckney's Plan, 1787.)

"He [the President] shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur." (The Constitution.)